So, can a prevailing defendant really recover e-discovery costs?


Remember when I told you that a prevailing defendant could recover all electronic discovery costs? I lied.

Oh, let off some steam and stick around. Allow me to explain. Actually, I’ll let Phil Miles at Lawffice Space explain:

Last Friday, the Third Circuit released a definitive opinion regarding taxation of e-discovery costs against losing litigants…Judge Vanaskie (who I’ll note is pretty hip to technology issues) largely vacated an order awarding $360,000 in e-discovery costs to the defendant, slashing it by more than 90%.

. . .

Although there may be strong policy reasons in general, or compelling equitable circumstances in a particular case, to award the full cost of electronic discovery to the prevailing party, the federal courts lack the authority to do so, either generally or in particular cases, under the cost statute.

Ultimately, in Race Tires Am., Inc. v. Hoosier Racing Tire Corp., a copy of which you can find here, the court concluded that converting and scanning electronic files were recoverable costs, while collecting and preserving electronically stored information (ESI), processing and indexing ESI, and keyword searching of ESI for responsive and privileged documents was not. Hasta la vista, baby.

Oh, don’t worry. I’ll be back…on Monday.